England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM CARDIFF COUNTY COURT
(His Honour Judge Gaskell)

		The Civil Justice Centre Park Street Cardiff Thursday 31 January 2002

Thursday 31 January 2002

1. LORD JUSTICE LATHAM: This is an appeal from a judgment of His Honour Judge Gaskell dated 18 September 2001. The judge held, on the trial of a preliminary issue, that the claim for damages for industrial disease, commenced by the respondent against the appellants on 20 March 2000, had been brought by the respondent within three years of his date of knowledge for the purposes of section 11(4) and section 14 of the Limitation Act 1980. He further held that, in any event, he would override the primary limitation period under section 33 of the Act and permit the action to proceed. The appellants appeal both conclusions of the judge.
2. The respondent claims that he suffers from asthma caused by the inhalation of oil mist and dust during his employment at the Rithin Mine, a small private drift mine, where he was employed by the first appellant from December 1986 until a date in 1990 when the mine was purchased by the second appellant, who employed the respondent thereafter until he left the mine in March 1992. The appellants do not dispute that the respondent suffers from asthma; but both deny that it was caused by his working conditions or any fault on their part.
3. The respondent claims that the working conditions at the mine were always very poor. For example, his evidence is that the only test to determine whether or not the atmosphere within the mine was good enough to work in was to carry a lighted oil lamp. So long as the lamp remained lit, it was considered that there was enough oxygen. Generally, his account is that the safety standards applied by both appellants were dangerously low and that steps were only taken to ensure that the respondent and other employees were not exposed to unnecessary danger when an inspection was imminent. The records, it is said, do not accurately record conditions in the mine and were falsified for the purposes of inspections. In particular there was a lack of adequate ventilation, and any protective respiratory equipment.
4. The respondent first become aware that he was suffering from some respiratory problems in 1987. He went to see his general practitioner, who referred him to Dr Thomas, a consultant physician, in June 1988. In a letter dated 15 June 1988 to his general practitioner, Dr Thomas reported that in his opinion the respondent had developed asthma. He recorded the fact that the respondent was a smoker and by then had worked underground for a total of 14 years. Consideration was given thereafter by Dr Thomas and his team to the question as to whether or not the respondent was suffering from pneumoconiosis. Dr Thomas' Registrar in a letter to the general practitioner of 27 November 1988 excluded that possibility.
5. By February 1989 the respondent himself noticed an association with work and was concerned as to whether or not this might be because he was now required to work with horses. It is clear from the material that we have that some allergen tests had been done, which were negative. It is not clear whether any specific tests were done in relation to horse dust or horse mite. Whatever the position, a clear diagnosis of asthma had been reached by that time. As a result, a claim made by the respondent to the Pneumoconiosis Medical Panel for Disablement Benefit on the ground that he was suffering from pneumoconiosis failed.
6. The respondent's condition persisted. He applied for Disablement Benefit on the basis that he was suffering from occupational asthma as a result, in his view, of working with horses. In a form dated October 1991 he said:

"So there is something at work that seriously affecting my breathing and I presume its the horses."

7. He was thereafter supplied with a flow meter to check his lung function at work and at home. The results which he recorded showed markedly reduced lung function at work as compared to home. On 17 January 1992 he wrote to Dr Timsley, the Medical Officer for the Medical Board, enclosing the charts. He stated that these showed that he was better at home than at work, and that he had been able to blow more air some 18 months previously. He referred to a conversation with someone taking air samples at the mine and having been informed of the low oxygen content. He said:

"... now Ive discovered that over the last 5 1/2 years we been working in foul air ... Im convinced now that this as caused my breathing problems. Ive now applied to see a Coal Board Doctor and try and get out of mining because I don't feel well enough to carry on doing it, but at the moment all thats on my mind is the amount of damage this could cause me..."

8. He was still attending Dr Thomas' clinic. In a letter of 14 February 1992 Dr Thomas wrote to the respondent's general practitioner:

"This man is being investigated for possible Occupational Asthma..."

9. The respondent's claim for industrial disablement benefit, to which I have already referred, was disallowed on 20 February 1992 on the basis that he was not suffering from occupational asthma due to exposure to animals, which had been the formal basis of his application. On 24 March 1992 Dr Thomas advised him to give up work in the mine. The respondent accepts that by then he was convinced that his chest problems had been caused by his working conditions or at least that his working conditions materially contributed to them.
10. The respondent continued to attend Dr Thomas' clinic until December 1992, when no further routine review appointment was provided. In July 1992 a locum consultant had described him as having:

"Possible occupational asthma, feeling better since he had ceased being in work."

11. On 19 August 1992 Dr Thomas' Registrar referred to him as "this gentleman with Bronchial Asthma". The latter description would appear to be entirely neutral as to whether the asthma was occupational.
12. In 1993 solicitors acting for a fellow-employee, Mr O'Riley, approached the respondent for a statement in relation to a possible claim by Mr O'Riley against the second appellant. Proposed proceedings were notified to the second appellant's insurers in 1995, which was in fact after the second appellant had gone into liquidation in November 1994. The proceedings were themselves commenced in 1996 and were settled in 2001 for £6,000.
13. In the meantime the respondent made a further claim on the basis of pneumoconiosis, which was unsuccessful for the same reason as before. In 1997 he decided to apply once again for benefit on the basis of occupational asthma. In this claim he identified his employment not only as employment with the appellants, but with former employers in the mining industry. But in answer to the question as to which of those employments caused his asthma he said:

"All of them to some degree, at Perfect Skills I was working with ponies and their feed, bedding etc."

14. In answer to the question "What caused the asthma", he said, "animal feed, bedding, pit ponies".
15. On this occasion his claim was successful. In a letter to the respondent's general practitioner dated 12 May 1997 the Board's then medical advisor said that the review showed that there had been a deterioration and that the flow charts taken previously clearly established a relationship between his chest condition and his place of work, and that the Board as a result had been prepared to diagnose occupational asthma due to "horse dander exposure in his work in the drift mine in Abertillary".
16. He then, for the first time, went to see solicitors on 30 June 1997. They instructed Dr Howard. The relevant parts of Dr Howard's report are as follows:

"The claimant has bronchial asthma. Bronchial asthma is an inflammatory condition of the bronchial airways giving rise to episodic attacks of wheeziness and breathlessness ... Mr Parsons developed occupational asthma. He attributes his impairment of respiratory function being in part attributable to smoking and in part to asthma."

17. The doctor's opinion was that the principal exposures were to horse dander, wood dust, hydraulic oil mist and diesel exhaust fumes, but the most intense was exposure to hydraulic oil mist from the jigger with which he worked. He did not consider that there was any evidence of wood dust or horse dander being the cause of the asthma, but oil mists had for many years been known to be damaging to the lungs and had since the mid-1980s been a known cause of occupational asthma. As a result, his conclusion was that the respondent suffered from:

"clear occupational asthma, most likely due to hydraulic oil mists in the Rithin private mine."

18. Industrial health and safety consultants were instructed by the solicitors, but took an inordinate amount of time to produce their report, which was eventually dated 21 December 1999. Having obtained a history and a description of his employment, they concluded that the respondent had been exposed to substantial quantities of mineral oil mist in consequence of his work with pneumatic cutting equipment as well as exposure to coal dust. It is on the basis of the reports of Dr Howard and the consultants that the respondent commenced the present proceedings.
19. The primary limitation period for the respondent's claim under section 11(4) of the 1980 Act is three years from the date on which the cause of action accrued or the date of knowledge (if later) of the respondent. The first question with which we are concerned today is whether or not the judge was correct in concluding that the respondent's date of knowledge for the purpose of this section was within three years of 20 March 2000.
20. Determination of a person's date of knowledge is governed by section 14 of the Act, which provides:

"(1) Subject to subsection 1(a) below, in sections 11 and 12 of this Act references to the person's date of knowledge are references to the date on which he first had knowledge of the following facts:

(a) that the injury in question was significant, and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute neglect, negligence or breach of duty; and

(c) the identity of the defendant."

21. For the purposes of this appeal it is accepted that the respondent had knowledge that the injury -- that is the disease in question -- was significant at the latest by 1991 and that he knew the identity of the defendant or defendants. The question is whether or not the respondent had knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute the neglect, negligence or breach of duty.
22. The rival contentions before the judge can be summarised as follows. The appellants argued that the respondent was first aware that the injury, that is the asthma, was attributable in whole or in part to the act or omission of the defendants at the latest when he made his claim for disablement benefit on 20 August 1991; alternatively, after he had completed the flow charts on 17 January 1992. By then he appreciated, it was said, that his disease was attributable to his working conditions. That, it was said, was sufficient to meet the requirements of section 14(1)(b). The respondent submitted that it was not until he received the report of Dr Howard in 1998 that he had knowledge of the relevant act or omission. The act or omission was the exposure to oil mist and that was the basis upon which the judge concluded that the respondent's date of knowledge fell within three years of the date of the commencement of the claim.
23. In determining whether or not the judge was correct to approach the matter on that basis we have today, as was the judge, been referred to a number of previous decisions of this court on the application of the relevant statutory provisions. The provisions in question have been the subject of substantial judicial consideration and to an extent have become encrusted with judicial comment. In those circumstances there is always the danger that by referring to the authorities one loses sight of the words of the statute itself. If the words of the statute can be readily applied to the facts of the case, any judicial gloss which has been put on them could be capable of deflecting the court from following the words of the statute.
24. In his submissions to us, Mr Leighton-Williams, on behalf of the appellants, put in the forefront of his argument observations of Sir Thomas Bingham (as he then was) in the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234. He submitted in support of the submission, as it was made in its broadest sense to the judge below, that the only knowledge that was necessary to start time running was knowledge that there was a connection between the disease in this case and working conditions. If such a connection had been made in the mind of the respondent, he submits, then the respondent could properly be described in the words of the statute as having knowledge that the disease was attributable to -- in other words, capable of being attributed to -- the act or omission and the act or omission can properly be described as working conditions. The passage on which he relies is on page 1240 after Sir Thomas Bingham had referred to the case of Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352. He says at letter G:

"Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault."

25. It seems to me, however, that Mr Leighton-Williams is reading too much into the words used by Sir Thomas Bingham in that passage in support of the broad argument that he was seeking to put before us to the effect that all that had to be established was that the particular claimant attributed his disease or injury to his working conditions. The case of Dobbie was a case involving medical negligence. It was not a case which involved an analysis of working conditions or what the phrase "working conditions" might in any given case cover. It seems to me that to say that an injury or disease is due to working conditions tells us in itself little or nothing about the relevant act or omission which could have caused that injury or disease. The circumstances of each case need to be considered to determine whether or not the words of the statute apply.
26. Mr Leighton-Williams, however, did have as a fall-back submission that in cases such as this, where the allegation is in relation to contaminated air within the workplace, it is sufficient for the court to conclude that a claimant has knowledge if he knows that the injury or disease from which he suffers was the result of exposure to contaminated air -- in other words, that it was to do with the failure of the employers to prevent contamination of the air or, alternatively, caused by the contamination of air as a result of the activities of the employer.
27. He submits that the respondent's argument in the present case, which is to restrict the relevant knowledge to the particular contaminant which is the subject matter of the claim as now pleaded, namely oil mist, is in fact a far too restrictive, in one sense, approach to the meaning of the words of the section. He submits that the knowledge which the court has to identify as relevant knowledge is broad knowledge of the essence of the causally relevant act or omission and the extent of knowledge is that which would make it reasonable for the person to set in train the enquiries which would enable him or her to determine whether or not he or she has a claim in negligence or breach of duty.
28. His submission is that in this type of case the court should simply ask the question as to when the claimant appreciated that the atmospheric conditions in the workplace were such as to have caused circumstances which could be directly related to the disease or injury about which he complains. And if that test is applied, he submits that the respondent here undoubtedly had that requisite knowledge, that is, of there being a connection between his disease and contaminated air, at the latest in January 1992, in other words well outside three years before the claim was eventually brought.
29. Mr McDermott on behalf of the respondent seeks to support the view of the judge that no such knowledge sufficient to justify the conclusion that the conditions of section 14(1) had been met until he knew that the condition from which he suffered was caused by exposure to oil mist. In my judgment, that particular approach to the facts of this case is too narrow. It would permit a claimant in the position of the respondent to in effect defer the date of knowledge until the precise etiology of his complaint had been identified. That does not seem to me to be what is intended by the words of section 14(1)(b). In my judgment, in this particular case, the way in which Mr Leighton-Williams put it in his fall-back argument is to be preferred. In my judgment this respondent had the relevant knowledge at the latest in 1992 and accordingly the primary limitation period had expired by the time the claim was brought.
30. That leaves the judge's conclusions as to section 33 of the Act. In dealing with the provisions of section 33, it is clear that the judge had well in mind the question of prejudice on the one hand to the respondent and on the other to the appellants, which is the basic consideration set out in section 33(1) of the Act. The prejudice to the claimant if the primary limitation period is applied is self-evident. He identified the prejudice to the appellants as a result of overriding the primary limitation period by referring to the fact that there were in this case difficulties in relation to documentation. He accepted that the result was that the court would be essentially relying on oral evidence but considered that that was a prejudice which operated in both directions. I do not for myself see that the judge's consideration of the respective prejudice to the claimant or the prejudice to the defendants was in any way at fault. He then considered the specific aspects under subsection 3 of section 33. He referred to the delay in bringing the proceedings. He concluded that the respondent was not at fault. He had from the moment that he had made a connection between his asthma and working conditions sought medical advice. As it happened, that had not indicated that there was any matter at work which was capable of giving rise to a claim against the appellants. He made claims both for pneumoconiosis and for industrial disability and brought his claim promptly in the sense that the moment that he appreciated as a result of the finding that he was entitled to industrial injury benefit that he might have a viable claim, he sought the advice of solicitors and acted promptly on that advice, albeit that there was delay which was no fault of the respondent himself in the obtaining of the expert engineer's report. The judge also considered the extent to which the evidence, as I have already indicated, was likely to be the less cogent because of delay and in my judgment could not be faulted in coming to the conclusion that he did.
31. It is said that the judge did not deal expressly with the question raised under section 33(3)(c) as to the conduct of the defendant and did not, therefore, it is submitted, appear to have applied his mind to the fact that the defendants could not be said in any way to have been at fault in relation to the action itself. It does not seem to me that the fact that the judge did not expressly mention that consideration justifies the conclusion that it was a matter which was not in his mind.
32. In those circumstances, there is nothing in the way in which the judge approached the case to justify the conclusion that the discretion, which ultimately was his discretion, was exercised wrongly or on the basis of any immaterial considerations nor of any relevant failure to take into account any material considerations. I would not accordingly interfere in any way with the exercise of the judge's discretion to override the time limits under section 33 of the Act. I would therefore dismiss this appeal.
33. LORD JUSTICE JUDGE: I agree. For well over three years before he began these proceedings Mr Parsons consistently attributed the steady deterioration in his ability to breathe to the insidious effect of the air which he was compelled to breathe while he was at work. He knew that somehow or other the air was contaminated, that ventilation was poor, that the air was foul and that the oxygen levels were too low. He was, however, ignorant of the cause or causes. Indeed, when the proceedings began, he was under what now emerges was the false impression that his problems were caused by working in close physical proximity to horses rather than to the prevalence of oil mist generated from and during the work processes.
34. He therefore knew that his chest condition was attributable at least in part either to the failure of his employers to keep the air in which he worked free of contaminants or at proper levels of purity, or to a system of work in which contaminants and foul air were generated. Focussing on the statutory language of section 14, in my judgment, on the facts here, knowledge was established well over three years before the proceedings were begun.
35. All that said, I further agree with Lord Justice Latham that in this case there are no grounds whatever for interfering with the discretion allowed to a judge under section 33 of the Act. In my judgment therefore this appeal should be dismissed.
ORDER: Appeal dismissed with costs, such costs to be subject to a detailed assessment. (Order not part of approved judgment)